LOAN AGREEMENT
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THIS LOAN AGREEMENT, is entered into this 18th day of May, 1994, by
and between P.T.C. BANCORP, INC., an Indiana corporation, having its principal
office located at the junction of State Road 101 and Xxxxxxxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx 00000, (hereinafter referred to as ("Debtor") and NATIONAL
CITY BANK, INDIANA, a national banking association, having its principal
offices at 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000
(hereinafter referred to as "Bank").
WITNESSETH:
WHEREAS, Debtor is engaged in business as a bank holding company; and
WHEREAS, Debtor desires to obtain from Bank a Two Million Six Hundred Thousand
($2,600,000.00) secured term loan (the "Loan") to refinance the balance of an
existing short term loan from Bank to Debtor Such funds were used to refinance
the balance of a loan from Fifth-Third Bank and to provide capital funds for
Debtor's Subsidiary bank; and
WHEREAS, Bank is willing to provide said financing subject to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of these premises and the
undertakings of the parties hereto, Debtor and Bank hereby agree as follows:
1. Definitions. Definitions of certain of the terms used in this
Agreement are set out as follows:
(a) "Bank Debt" shall mean Debt payable to Bank, whether
initially payable to Bank or acquired by Bank by
purchase, pledge or otherwise and whether assigned to
or participated to or from Bank in whole or in part.
(b) "Cash Flow" shall mean net income plus depreciation,
amortization, interest expense, and income taxes.
(c) "Debt" shall mean collectively, all monetary
liabilities, and any charges or expenses incurred in
connection therewith, now or hereafter owing by the
Person or Persons in question, including, without
limitation, every such liability whether owing by such
Person or one (1) of such Persons alone or jointly,
severally or jointly and severally, whether owing
absolutely or contingently, or directly or indirectly,
and whether created by loan, overdraft, guaranty or
other contract or quasi-contract, tort, statute or
other operation of law .
(d) "Federal Funds Rate" shall mean a floating rate per
annum equal to the Federal Funds Rate plus fifty (50)
basis points.
(e) "LIBOR Rate" shall mean that rate of interest as
quoted by Bank which shall be based upon the rate
offered to Bank through leading banks in the London
Interbank Market for U.S. Dollar deposits on
immediately available funds for the interest rate
period elected by Borrower plus the cost of any
reserve requirements that may be imposed upon Bank for
such deposits if Bank elects to match funds.
(f) "Nonperforming Assets" shall mean the aggregate sum of
(i) Loans that are past due ninety (90) days or more,
plus (ii) Non accrual loans, plus (iii) Other Real
Estate Owned, as reported in the quarterly Call
Reports of Bank Subsidiary.
(g) "Obligor" shall mean any person who is or shall become
obligated or whose property is or shall serve as
collateral for the payment of Debtor's Bank Debt or
any part thereof in any manner and, in addition to
Debtor, includes, without limitation, any maker,
endorser, guarantor, subordinating creditor, assignor,
pledgor, mortgagor or hypothecator of property.
(h) "Person" shall mean a natural person or entity of any
kind, including, without limitation, any corporation,
partnership, trust, governmental body or any other
form of entity.
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(i) "Primary Capital " shall mean the aggregate sum
of (i) Total equity, plus (ii) Loan loss
reserve, as reported in the quarterly Call
Reports of Bank Subsidiary.
(j) "Prime Rate" shall mean the fluctuating rate of
interest which is publicly announced from time
to time by Bank at its principal place of
business as being its "prime rate" or "base
rate" thereafter in effect, with each change in
the Prime Rate automatically, immediately and
without notice changing the fluctuating interest
rate thereafter applicable hereunder, it being
agreed that the Prime Rate is not necessarily
the lowest rate of interest then available from
Bank on fluctuating rate loans.
(k) "Reference Rate" shall mean the rate in effect
on any given day that is the higher of either
(a) Bank's Prime Rate or (b) Federal Funds Rate.
(l) "Related Writing" shall mean a writing of any
form or substance signed by any Obligor (whether
as principal or agent) or by any attorney,
accountant or other representative of any
Obligor and received by Bank in respect of
Debtor's Bank Debt or any part thereof,
including, without limitation, any credit
application, credit agreement, reimbursement
agreement, financial statement, promissory note,
guaranty, indenture, mortgage, security
agreement, certificate, opinion or any similar
writing, but shall not include any commitment
letter issued by Bank, without regard to whether
Debtor or any other Person signed or
acknowledged receipt thereof.
(m) "Return on Assets" shall mean (i) Net Income
divided by (ii) Total Assets, as reported in the
quarterly Call Reports of Bank Subsidiary.
(n) "Underperforming Loans" shall mean the aggregate
sum of (i) Non Accrual Loans, plus (ii) Loans
that are past due ninety (90) days or more, as
reported in the quarterly Call Reports of Bank
Subsidiary.
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Other Definitions: Rules of Construction. Terms defined in this
Section, as well as terms defined throughout this Agreement, shall include
both the singular and plural forms thereof and shall be construed accordingly.
All computations required hereunder and all financial terms used herein shall
be made or construed in accordance with generally accepted accounting
principles unless such principles are inconsistent with the express
requirements of this Agreement.
2. Term Loan. Bank shall, subject to the terms and conditions of
this Agreement, allow Debtor to refinance the outstanding balance of its
existing term loan from Bank under a secured term loan in the principal amount
of Two Million Six Hundred Thousand and No/100 Dollars ($2,600,000.00) (the
"Loan"). The Loan shall bear interest at a fluctuating rate (based upon a
360-day year and the actual number of days elapsed) equal to the Reference
Rate. At the Debtor's option from time to time during the term of the Loan,
the balance of the Loan may bear interest at a fixed rate per annum (based
upon a 360-day year and the actual number of days elapsed) equal to the LIBOR
Rate plus 185 basis points for periods of thirty (30), sixty (60), ninety
(90), one hundred twenty (120), or one hundred eighty (180) days, as Debtor
elects. Debtor must confirm the election of any option in writing which must
be received by Bank at least one (1) Business Day before the elected effective
date. Such writing shall contain all necessary details of the elected option
and shall be signed by a duly authorized officer of Debtor. Once elected, a
fixed rate option shall be irrevocable and may not be prepaid. Unless
otherwise duly elected, advances bearing interest at a fixed rate option shall
automatically convert to bearing interest at the Reference Rate upon
expiration of the elected interest period. Debtor shall pay an initial
principal payment in the amount of Seven Hundred Fifty Thousand and No/l00
Dollars ($750,000.00) on September 30, 1994. The remaining principal balance
of the Loan shall be repaid in equal quarterly installments of principal, each
in the amount of Ninety-Two Thousand Five Hundred and No/100 Dollars
($92,500.00), plus accrued interest, commencing December 31, 1994, and
continuing to be due and payable on the last day of each calendar quarter
thereafter until September 30, 1999, when the total outstanding balance of
unpaid principal, accrued interest, and charges provided for herein shall
become due and payable.
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The Loan shall be evidenced by a Commercial Installment Note (the "Loan Note")
in the form attached hereto as Exhibit "A", the terms of which are
incorporated herein. The account records of Bank shall be a prima facie
evidence of transactions between Debtor and Bank for the purpose of the Loan.
3. Collateral. The Loan granted hereunder and the performance of
all liabilities and covenants of Debtor in favor of Bank shall be secured, and
a first lien is hereby granted to Bank in on hundred percent (100%) of the
issued and outstanding shared of stock (the "Stock") of People's Trust
Company, Brookville, Indiana, an Indiana state bank, (the "Bank Subsidiary"),
pursuant to a Pledge Agreement, of even date herewith, the form of which is
attached hereto as Exhibit "B", the terms of which are incorporated herein.
4. Conditions Precedent. The following shall be conditions
precedent to the advancement of any portion of the Loan by Bank to Debtor:
(a) Debtor shall execute and deliver, or cause to be
delivered to Bank the Note, Pledge-Agreement, and
other documents required hereunder;
(b) Debtor shall furnish to Bank evidence, satisfactory to
Bank, that there are no other liens or encumbrances of
any kind upon the collateral pledged by Debtor to Bank
hereunder;
(c) Debtor shall furnish to Bank certified copies of
resolutions of the Board of Directors of Debtor
approving and authorizing the borrowings from Bank and
the execution and delivery of all documents in
connection therewith;
(d) Debtor shall furnish or cause to be furnished to Bank
a copy of Debtor's and Bank Subsidiary's respective
Articles of Incorporation, and its By-Laws, with all
amendments thereto, and a Certificate of Existence,
currently certified respectively by their respective
corporate secretaries and the Secretary of State of
Indiana;
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(e) Debtor shall furnish to Bank a certificate of
incumbency for Debtor's officers together with
specimen signatures thereof;
(f) Debtor shall furnish to Bank upon request a
certification that the warranties and representations
set forth in this Agreement are true and correct and
that there has been full compliance with the covenants
set forth in this Agreement;
(g) Debtor shall furnish to Bank an opinion of Debtor's
counsel, which is acceptable to Bank and its counsel,
to the effect that:
(i) Debtor and Bank Subsidiary are a bank holding
corporation and a state banking corporation,
respectively, duly organized, validly existing
and in good standing under the laws of the
State of Indiana and have the power, authority
and necessary licenses to carry on their
respective businesses as now conducted or
proposed to be conducted;
(ii) This Agreement and all documents and
instruments required hereunder or in
connection herewith have been duly authorized
by all corporate action necessary on the part
of Debtor and have been executed and delivered
by the duly authorized officers of Debtor, and
such instruments constitute legal, valid and
binding instruments in accordance with their
terms;
(iii) There is no material litigation or proceeding
pending, or, to the knowledge of counsel,
threatened against or otherwise affecting
Debtor, Bank Subsidiary, or any of their
respective properties or assets before any
court or before or by any governmental agency;
and
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(iv) Neither the execution nor the consummation of
the transactions contemplated by this
Agreement nor compliance with the terms and
provisions of the other documents referred to
above conflict with, result in a breach of or
constitute a default under, the terms,
conditions or provisions of the Articles of
Incorporation of Debtor or Bank Subsidiary,
any material contract or agreement of either
Debtor or Bank Subsidiary, or any law,
regulation, order, writ, injunction or decree
of any court or governmental instrumentality
having jurisdiction;
(h) Debtor shall furnish evidence to Bank, in form and
substance acceptable to Bank, that Debtor and Bank
Subsidiary are properly and adequately insured against
all risks and liabilities for which they can
reasonably be insured and for which companies in
similar businesses are insured. Such evidence shall
include but not be limited to, certificates of
insurance or certified insurance binders, or originals
or certified copies of insurance policies;
(l) Before being required to make any advance hereunder,
Bank may require Debtor to submit to Bank such
evidence and information to enable Bank to determine,
to Bank's satisfaction that: (1) there has been no
material deterioration of Debtor's financial position
since the execution of this Agreement and (2) that
Debtor has the financial capacity and is otherwise
able to repay all amounts owing or to be owed by
Debtor hereunder in accordance with the terms herein.
All documents required to be executed and delivered under this
paragraph shall be satisfactory in form and substance to Bank and its counsel.
Any of the foregoing conditions may be
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waived by Bank at the time of any advancement. In addition to all of the terms
and conditions to be performed by Debtor under this Agreement, Debtor shall
deliver or cause to be delivered to Bank such other documents as may from time
to time be required by Bank to carry out the terms and provisions of this
Agreement.
5. Representations and Warranties. Debtor represents and warrants
to Bank that:
(a) Debtor and Bank Subsidiary are a bank holding
corporation and a state banking corporation,
respectively, duly organized, validly existing and in
good standing under the laws of the State of Indiana
and has full corporate power under their respective
Articles of Incorporation, as amended, under all
applicable provisions of the law to procure the Loan,
grant the security interests and to consummate all
transactions connected with the Loan;
(b) Debtor and Bank Subsidiary have full corporate power
and authority to conduct business in the State of
Indiana;
(c) The procurement of the Loan and the consummation of
all transactions connected with the Loan have been
duly authorized by all necessary corporate action on
the part of the Debtor;
(d) All required federal, state and other tax returns have
been filed by Debtor and Bank Subsidiary, and the
taxes in connection therewith paid to date and no
additional taxes or assessments have been asserted or
are anticipated;
(e) There is no material litigation or proceeding pending,
or to the knowledge of Debtor, threatened against or
otherwise affecting Debtor, the Bank Subsidiary, or
any of their respective properties or assets before
any court or before or by any governmental agency;
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(f) The Stock is now solely owned by Debtor and is not
subject to any prior liens, security interests,
encumbrances or restrictions on transfer or
assignment;
(g) All information heretofore furnished to Bank by Debtor
is true, accurate and correct;
(h) There are no governmental authorizations, permits,
certificates, licenses, filings, registrations,
approvals or consents which must be obtained, received
or made by Debtor for Debtor lawfully to (i) make,
execute and deliver this Agreement; (ii) perform all
of Debtor's obligations under this Agreement; or (iii)
conduct Debtor's business as contemplated hereunder;
(i) Neither Debtor nor Bank Subsidiary are in material
violation of any local, state or federal law including
but not Limited to any health, labor or environmental
rules or regulations, and neither Debtor nor Bank
Subsidiary own any property which has been previously
used as a landfill, dump or disposal site for garbage
or refuse or for activities involving, directly or
indirectly, the generation, treatment, or disposal of
any Hazardous Materials;
(j) Debtor is in material compliance with the Employee
Retirement Income Security Act of 1974 ("ERISA")
insofar as such Act applies. No condition exists or
event or transaction has occurred in connection with
any plan, as defined in Section 3 of ERISA, maintained
by the Debtor, which could result in the incurrence of
any material liability, fine or penalty to the Debtor
for any such unfunded pension plan;
(k) Debtor is not now engaged principally, or as one of
Debtor's important activities, in the business of
extending credit for the purpose of purchasing or
carrying any margin stock (within the meaning of
Regulation U of the
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Board of Governors of the Federal Reserve System). No
part of the proceeds of the Credit and/or Loan
hereunder have been or will be used to purchase or
carry any such margin stock or to extend credit to
others for the purpose of purchasing or carrying any
such margin stock. If requested by Bank, Debtor will
furnish to Bank a statement in conformity with the
requirements of Federal Reserve Form U-1. No part of
the proceeds of the Loan have been or will be used for
purpose that violates, or which is inconsistent with
the provisions of Regulations G, U or X of said Board
of Governors; and
(l) Debtor further warrants to Bank that (a) none of the
written statements, representations or warranties
furnished by Debtor to Bank in connection with this
Agreement contains or will contain any untrue
statement or omits or will omit a material fact
necessary to make the statements contained therein or
herein, in light of the circumstances when made,
misleading; and (b) there is no fact which Debtor has
not disclosed to Bank which materially affects
adversely, or as far as Debtor presently can foresee,
will have a material adverse effect on the properties,
business, or condition (financial or otherwise) of
Debtor or the ability of Debtor to fully perform
Debtor's obligations under this Agreement.
All representations and warranties made by Debtor under or in
connection with this Agreement or in any other document delivered by Debtor to
Bank in connection with this Agreement shall survive the making of the Loan
and issuance and delivery of the Note to the Bank, notwithstanding any
investigation made by Bank or on Bank's behalf. All statements contained in
any certificate or financial statement delivered by Debtor to Bank under his
Agreement shall constitute representations and warranties made by Debtor
hereunder.
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6. Covenants. Debtor covenants to Bank that so long as the Loan
shall remain unpaid Debtor will:
(a) Promptly pay and discharge all taxes, assessments and
governmental charges which may be lawfully levied)
imposed or assessed upon Debtor, the Bank Subsidiary,
or their respective properties, assets, income or
profits; provided, however, that they shall have the
right to contest in good faith any such tax,
assessment) charge or levy by appropriate proceeding
after providing adequate reserves therefor;
(b) Keep accurate and complete books and records and
maintain the same at Debtor's principal offices;
(c) Furnish Bank with the following financial statements
and other information at the following times:
(i) As soon as available and in any event within
thirty (30) days after the end of each
calendar quarter, one (1) copy of the
consolidated balance sheet and statements of
income and retained earnings of Debtor as of
and for each such period, all in reasonable
detail, prepared in accordance with generally
accepted accounting principles applied on a
consistent basis throughout the periods
involved, and certified by a financial officer
of Debtor and which is otherwise in a form
acceptable to Bank;
(ii) As soon as available and in any event within
thirty (30) days after the end of each
calendar quarter, one (1) copy of a
Sensitivity Analysis on Bank Subsidiary,
certified by a financial officer of Debtor and
which is otherwise in a form acceptable to
Bank,
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(iii) As soon as available and in any event within
thirty (30) days after the end of each
calendar quarter, one (1) copy of the
quarterly Call Report of Bank Subsidiary, as
reported to the Federal Financial Institutions
Examinations Council, certified by a financial
officer of Bank Subsidiary, and which is
otherwise in a form acceptable to Bank,
(iv) As soon as available and in any event no less
than semi-annually, one (1) copy of the
current FRY9SP of Debtor, as reported to the
Federal Reserve Bank of Chicago for parent
company only financial statements for bank
holding companies with total consolidated
assets of less than One Hundred Fifty Million
and No/100 Dollars ($150,000,000.00),
certified by a financial officer of Debtor,
and which is otherwise in a form acceptable to
Bank,
(v) As soon as available and in any event within
one hundred twenty (120) days after the end of
each fiscal year, one (1) copy of the annual
consolidated and consolidating balance sheet
and statements of income and retained earnings
of Debtor and Bank Subsidiary, as of and for
the year then ended, all in reasonable detail,
including a statement of contingent
liabilities, and stating in comparative form
the figures for the corresponding date and
period in the previous fiscal year plus a
statement of cash flows, audited by an
independent certified public accountant
selected by Debtor and Bank Subsidiary, which
is otherwise in a form acceptable to Bank;
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(vi) As soon as available, one (1) copy of all
reports submitted to Debtor's shareholders or
any governmental agency;
(vii) Immediately upon the occurrence of any event
of default or event which upon the lapse of
time may become an event of default under this
Agreement, a certificate of Debtor stating the
specific nature of the default, the Debtor's
intended actions to cure such default and the
time period in which such cure is to occur;
(viii) From time to time upon request by Bank, as
Bank may require, such further information
regarding the business affairs and financial
condition of Debtor or Bank Subsidiary,
including, but not limited to, accounting and
management recommendations and certificates of
no default under the Loan by the independent
certified public accountant selected by Debtor
and acceptable to Bank.
(e) Permit any authorized representative of Bank and its
attorneys and accountants to inspect, examine and make
copies and extracts of the books of account, records
and inventory of Debtor or Bank Subsidiary at
reasonable times during normal business hours,
including, but not limited to, periodic field
examinations by Bank accounting staff, the reasonable
expense of which shall be reimbursed to Bank by
Debtor;
(f) Defend and give prompt written notice to Bank of any
process or action taken or pending whereby a third
party is claiming any money damages or any interest in
the assets of Debtor or Bank Subsidiary which in a
total aggregate amount exceeds Two Hundred Fifty
Thousand and No/100 Dollars ($250,000.00);
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(g) Insure and keep insured by fire and extended coverage
and valuable papers coverage the assets of Debtor in
an amount at least equal to the full value thereof
against loss by fire and other risks customarily
insured against by companies engaged in similar
business, including but not limited to comprehensive
property and casualty, public liability and workmen's
compensation insurance, with insurance companies
acceptable to Bank, which shall be in amounts and
under coverages acceptable to Bank. Debtor shall
furnish evidence of such insurance coverage;
(h) Maintain its corporate existence in good standing in
the State of Indiana;
(i) Maintain on a consolidated basis the ratio of (i) Cash
Flow to (ii) annual principal payments, interest
expense, and dividends of no less than 1.25:1;
(j) Bank Subsidiary shall maintain a minimum Loan Loss
Reserve to Underperforming Loan ratio of 1.2:1;
(k) Bank Subsidiary shall maintain a minimum Loan Loss
Reserve to Total Loans ratio of .01:1;
(l) Bank Subsidiary shall maintain a minimum Primary
Capital to Assets Ratio 0.07:1;
(m) Bank Subsidiary shall maintain a minimum Return on
Assets ratio of 0.80:1;
(n) Bank Subsidiary shall maintain a maximum Nonperforming
Assets to Total Loans plus Other Real Estate Owned
(OREO) ratio of 1.50:1;
(o) Bank Subsidiary shall maintain maximum Commercial Real
Estate Loans to Total Loans ratio of 0.3:1;
(p) Maintain Debtor and Subsidiary in compliance with all
local, state and federal laws, including but not
limited to, all environmental, health, labor, and
banking rules and regulations.
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7. Negative Covenants. In addition, Debtor covenants to Bank that
so by Loan shall remain unpaid it will not nor will Debtor allow Bank
Subsidiary to, without prior written consent of Bank:
(a) Create or permit to exist any mortgage, pledge,
security interest, title retention device or other
encumbrance on any property, rights or assets owned or
hereafter acquired by Debtor except for liens of taxes
and assessments not delinquent or contested in good
faith, those liens incurred in the ordinary course of
banking and the security held by Bank;
(b) Incur or permit to exist any indebtedness for borrowed
money or otherwise on a deferred payment basis to any
other lender;
(c) Enter into any consolidation or merger with any other
corporation or sell or lease all or any substantial
part of its property;
(d) Assume, guarantee or otherwise become liable as a
guarantor or surety for the obligations of any person,
firm, corporation or any other entity, except as
required in the ordinary course of banking;
(e) Remove any of Debtor's present executive officers from
the management of Debtor's affairs without prior
written notice to Bank;
(f) Allow an event to occur or permit a condition to exist
which has or could have a materially adverse effect
upon the financial condition of Debtor or Debtor's
ability to repay the obligation when due;
(g) Use any funds borrowed hereunder for any purpose other
than bona fide corporate purposes of Debtor in the
ordinary course of its current business practices; and
(h) Make any changes in the scope or nature of Debtor's
business activities.
8. Default. The occurrence of any of the following shall
constitute an event of default (an "Event of Default") hereunder; (a) Debtor's
Bank Debt or any part thereof shall not be paid in full
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promptly when due (whether by lapse of time, acceleration of maturity or
otherwise); (b) any Obligor shall die or be dissolved; (c) any representation
or warranty made by any Obligor in this Agreement or any Related Writing shall
be false or erroneous in any material respect; (d) any Obligor shall fail or
omit to perform or observe any agreement made by that Obligor in this
Agreement or any Related Writing; if not cured within 30 days of obligor's
discovery thereof (e) a judgment shall be entered against any Obligor in any
court of record; (f) any deposit account of any Obligor is attached or levied
upon; (g) any voluntary petition by or involuntary petition against any
Obligor shall be filed pursuant to any chapter of any bankruptcy code or any
Qbligor shall make an assignment for the benefit of creditors, or there shall
be any other marshaling of the assets and liabilities of any Obligor for the
benefit of the Obligor's creditors; (h) any Obligor enters into any merger or
consolidation or sells, leases or otherwise disposes of all or substantially
all of such Obligor's assets in any manner other than in the ordinary course
of business; or (i) any Obligor's Bank Debt or any part thereof shall not be
paid in frill immediately when due (whether by lapse of time, acceleration of
maturity or otherwise). Upon the occurrence of an Event of Default, Bank may,
in its sole discretion, declare any and all flank Debt to be due and payable
and, if applicable, that Debtor no longer be permitted to obtain advances; and
all principal of and interest shall thereupon become immediately payable in
frill, without any presentment, demand or notice of any kind, which Debtor
hereby waives. Debtor will pay to Bank all costs and expenses of collection of
this Bank Debt, including, without limitation, attorneys' fees.
9. Indemnification. Debtor agrees to indemnify Bank against any
losses, liabilities, fines, costs, charges, damages, injuries, penalties,
expenses and claims of any nature whatsoever (including response costs) paid,
incurred or suffered by Bank as a result of any environmental liability in
connection with this Agreement including but not limited to, any and all
environmental liability from the presence, disposal or release of Hazardous
Materials on or from Debtor's property, and all costs and expenses incurred by
Bank in anticipation of foreclosure for environmental assessment and testing
of Debtor's property. Further, Debtor hereby agrees to cooperate with the Bank
and give Bank access to Debtor's property during normal business hours to
conduct such environmental
16
assessment and testing that Bank deems reasonably necessary, and should there
be a spill or other environmental problem or occurrence arising in connection
with Debtor's property, Debtor shall (1) conduct and complete all
investigations, studies, sampling, and testing and all remedial, removal, and
other actions necessary to clean up and remove all Hazardous Materials on,
from, or affecting the property occupied, (a) to the satisfaction of Bank and
(b) in accordance with the orders and directives of all federal, state, and
local governmental authorities, and (2) defend, indemnify, and hold harmless
Bank, its employees, agents, officers, and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs,
or expenses (including, without limitation, attorney and consultant fees,
investigation and laboratory fees, court costs, and litigation expenses) of
whatever kind or nature, known or unknown, contingent or otherwise; arising
out of or in any way related to (a) the presence, disposal release, or
threatened release of Hazardous Materials which are on, from or affecting the
soil, water, vegetation, buildings, personal property, persons, animals, or
otherwise; (b) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to such Hazardous
Materials; (c) any lawsuit brought or threatened, settlement reached, or
government order relating to such Hazardous Materials, and/or (d) any
violations of laws, orders, regulations, requirements, or demand of government
authorities, or any policies or requirements of Bank, which are based upon or
in any way related to such Hazardous Materials.
10. General. No waiver by Bank of any requirement or of the breach
of any term, condition, warranty, representation, covenant or agreement
contained herein or in the documents delivered pursuant to this Agreement
shall be considered as a waiver of the same in the future or any other
requirement or default and no delay or omission by Bank in exercising any
right or remedy hereunder shall impair any such right or remedy or be
construed as a waiver of any default. Any modification of or amendment of this
Agreement shall be ineffective unless in writing and signed by the duly
authorized officers of Debtor and Bank. Any notices required hereunder shall
be deemed sufficient when mailed, first class with postage prepaid, to Debtor
and Bank (at its Corporate
17
Banking Department) at the address first above written or to such other
address as either Debtor or Bank may from time to time specify by written
notice to the other. Debtor and Bank severally, each for itself, acknowledges
and agrees that, except as expressly provided herein with respect to Debtor's
obligations to maintain depository account(s) (if any) with Bank, the
extension(s) of credit provided for herein are neither conditioned upon nor
have the interest rates and fees therefor been set based upon Debtor's
agreement to purchase any other product or service from Bank. Further, Debtor
and Bank severally, each for itself, acknowledges and agrees that Bank has not
offered these extension(s) of credit or offered to reduce the interest rate(s)
or fee(s) therefor except as provided herein.
11. Entire Agreement and Severability. This Agreement contains the
entire understanding between and among the parties hereto and supersedes any
prior understandings and agreements between or among them respecting the
subject matter of this Agreement. The invalidity or unenforceability of any
provision of this Agreement in a particular respect shall not affect the
validity or enforceability of any other provisions of this Agreement or of the
same provision in any other respect, and all other provisions or terms of this
Agreement shall remain in full force and effect and shall be enforceable as if
the unenforceable or invalid provision or term had never been a part hereof.
12. Successors and Assigns. The covenants, representations,
warranties and provisions herein set forth shall be binding upon Debtor and
Debtor's successors and assigns; however, because Bank has entered into this
Agreement in reliance upon Debtor and its present shareholders, officers and
directors, any transfer, assignment or alienation (except to Bank) of any
rights of Debtor hereunder or of any right or interest in Debtor shall not be
effective without the prior written consent of Bank.
16. Jurisdiction Venue and Law. This Agreement and the Related
Writings executed in association herewith, and the rights and obligations of
the parties hereunder and thereunder shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Indiana without
regard to any conflict of laws provisions. The Debtor hereby irrevocably and
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unconditionally: (a) submits for itself and its respective property in any
legal action or proceeding commenced by Bank relating to this Agreement or any
security interest hereto, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of Indiana, the courts of the United States of America for the
Southern District of Indiana, and appellate courts from any thereof; (b)
consents that any such action or proceeding may be brought in such courts, and
waives any objection that it may now or hereafter have to the venue of any
such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the
same; (c) agrees that the service of process any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mall (or any
substantially similar form of mail), postage prepaid, to the Debtor at its
address set forth above or at such other address of which Bank has been
notified in writing; and (d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
13. Jury Trial Waiver. IN ORDER TO AVOID DELAYS AND MINIMIZE
EXPENSE, BANK AND DEBTOR EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT TO TRIAL BY JURY IN RESPECT OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY RELATED WRITING OR ANY AMENDMENT THERETO, WHETHER NOW EXISTING OR
HEREINAFTER ARISING AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE, AND
EACH PARTY HEREBY AGREES AND CONSENTS TRAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY, AND A COPY
OF THIS AGREEMENT MAY BE FILED WITH ANY COURT AS EVIDENCE OF THE CONSENT OF
EACH OF THE PARTIES HERETO TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day and in the year first above written.
P.T.C. BANCORP, INC.
By: /s/ XXXXX X. XXXXX
-------------------------
Xxxxx X. Xxxxx
President
NATIONAL CITY BANK, INDIANA
By:
-------------------------
Xxxxx X. Xxxxxx
Vice President
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